Citation Nr: 1437702
Decision Date: 08/22/14 Archive Date: 08/27/14
DOCKET NO. 07-33 185 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio
THE ISSUES
1. Entitlement to service connection for a bone lesion also claimed as a right hip disability.
2. Entitlement to service connection for bilateral knee disability.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Mac, Counsel
INTRODUCTION
The Veteran had active duty service from September 1971 to September 1973. He had subsequent service in the Navy Reserve, Army National Guard and Army Reserve.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In February 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record.
The Board notes that the Veteran did not file a substantive appeal regarding his claim of entitlement to service connection for a bilateral knee disability. Further review of the file shows that the Veteran was afforded a Decision Review Officer hearing in September 2010 and a Board hearing in February 2012 and has been led to believe that the issue was on appeal. Thus the Board accepts jurisdiction over the issue. Cf. Percy v. Shinseki, 23 Vet. App. 37 (2009) (VA can waive objection to timeliness of substantive appeal by taking actions that lead the Veteran to believe that an appeal was perfected).
In May 2012 the Board issued a decision that in part denied service connection for a bone lesion also claimed as a right hip disability and remanded the issue of entitlement to service connection for a bilateral knee disability. In July 2013 the Board denied the Veteran's motion for reconsideration of it May 2012 decision.
Pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F. 3d 1312 (Fed. Cir. 2013), the Board's May 2012 decision was identified as having been potentially affected by an invalidated rule relating to the duties of the Veterans Law Judge that conducted the February 2012 hearing. In order to remedy any such potential error, the Board sent the Veteran a letter notifying him of an opportunity to receive a new hearing and/or a new decision from the Board. In July 2014 the Veteran requested a new Travel Board hearing.
In an Order, dated in January 2014, the U.S. Court of Appeals for Veterans Claims granted a Joint Motion to Remand (JMR) and remanded the case to the Board for action consistent with the terms of the Joint Motion. The parties in the Joint Motion agreed that the May 2012 Board decision denying service connection for a bone lesion also claimed as a right hip disability was affected by the settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs 725 F. 3d 1312 (Fed. Cir. 2013), and that the issue should be remanded for a new decision and, should the Veteran request it, a new Board hearing.
The Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) have been reviewed. VBMS includes a letter dated in September 2013 notifying the Veteran that the 2011 rule that stated that 38 C.F.R. § 3.103 did not apply to Board hearings was invalidated. The other documents in the electronic files are either duplicative of the evidence of record or are not pertinent to the present appeal
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.
REMAND
As explained above, the Veteran has requested a new Travel Board hearing regarding his claim of entitlement to service connection for a bone lesion also claimed as a right hip disability. He should be afforded such a hearing.
In statements and testimony the Veteran contends that he sustained multiple injuries to his right hip during his National Guard and Reserve Service, including in 1984 and 1999. In a January 2010 authorization form he claim that during Reserve service in 1999 he fell and injured both knees and his right hip. As the Veteran is claiming that his bilateral knee injury in part stems from the same injury as his right hip the Board finds that the issues are inextricably intertwined and further consideration of the issue of service connection for a bilateral knee injury should be deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue).
Accordingly, the case is REMANDED for the following action:
The RO should take appropriate steps to have the Veteran scheduled for a hearing at the local office before a Veterans Law Judge. The Veteran should be notified of the date and time of the scheduled hearing. Afterwards the case should be returned to the Board.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
_________________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).